The Stanton Foundation First Amendment Clinic and the Intellectual Property & the Arts Clinic have filed an amicus brief in Brewer v. Metro Government of Nashville, a case related to the tragic and fatal shootings at The Covenant School in Nashville in 2023.
The brief exclusively addresses the Chancery Court’s decision regarding the application of the federal Copyright Act and its interaction with the Tennessee Public Records Act (TPRA). The Amici, including faculty from several universities and organizations representing professional journalists, contend the Chancery Court’s ruling that the Copyright Act blocked disclosure of the perpetrator’s documents ignored well-established legal principles and misapplied the law.
Amici take no position on the state law exceptions to the TPRA or the ultimate disclosure of the perpetrator’s documents.
“The narrow legal issues addressed by the Amici—that the Chancery Court should not have ruled on the Copyright Act and that the court mistakenly held that the Copyright Act blocks the Tennessee Public Records Act—are critically important. If this part of the Chancery Court’s opinion is not overturned, Tennessee’s public records law will be damaged, and Tennesseans will lose an important way to monitor and hold the government accountable,” Michael B. Bressman, Professor of the Practice of Law and Director of the Vanderbilt Intellectual Property & the Arts Legal Clinic, said.
The Amici assert:
- The U.S. Supreme Court and the Tennessee Supreme Court have instructed courts to avoid deciding constitutional issues such as whether the federal Copyright Act preempts the TPRA when Tennessee state law dispositively resolved the matter.
- The Chancery Court misinterpreted the Copyright Act to mistakenly conclude that the TPRA conflicts with it. In particular, the Chancery Court failed to consider whether the requests for the perpetrator’s documents were “fair use,” which permits the use and copying of copyrighted documents for limited purposes, like news reporting and research.
- The Chancery Court’s holding that the Copyright Act preempts the TPRA will have grave implications for government transparency and access to public records in all cases involving documents created by non-government third parties. For example, if a member of the public wants to inspect and copy a real estate developer’s drawings for a new construction project to prepare comments for a public hearing, the Chancery Court’s decision would bar release of these documents to the requestor.
“The consideration of fair use is integral to ensuring that copyright law accommodates core First Amendment protections for news gathering, research, and scholarship, including in the context of public records determinations,” explained Jennifer Safstrom, Assistant Clinical Professor of Law and Director of the Stanton Foundation First Amendment Clinic.
The following individuals joined as Amici (with institutional affiliation included only for identification purposes):
- Patricia Aufderheide, University Professor, School of Communication at American University.
- Joseph Fishman, Professor of Law at Vanderbilt University Law School.
- Shubha Ghosh, Crandall Melvin Professor of Law, Director of the Intellectual Property & Technology Commercialization Law Program, and Director of the Syracuse Intellectual Property Law Institute (SIPLI) at Syracuse University College of Law.
- Llewellyn Joseph Gibbons, Distinguished University Professor of Law at The University of Toledo College of Law.
- Ellen P. Goodman, Distinguished Professor and Co-Director, Rutgers Institute for Information Policy & Law at Rutgers Law School.
- Jack Lerner, Clinical Professor of Law and Director, UCI Intellectual Property, Arts, and Technology Clinic at University of California, Irvine School of Law.
- Matt Malone, Samuelson-Glushko Assistant Professor at University of Ottawa Faculty of Law.
- Heather E. Murray, Associate Director, First Amendment Clinic at Cornell Law School.
- Tyler T. Ochoa, Professor of Law, High Tech Law Institute at Santa Clara University School of Law.
- Aaron Perzanowski, Thomas W. Lacchia Professor of Law at University of Michigan Law School.
- Laura Quilter, Copyright and Information Policy Librarian at University of Massachusetts, Amherst.
- Amanda Reid, Associate Professor at the Hussman School of Journalism at University of North Carolina at Chapel Hill.
- Rebecca Tushnet, Frank Stanton Professor of the First Amendment at Harvard Law School
- Eugene Volokh, Thomas M. Seibel Senior Fellow at the Hoover Institute at Stanford University and Gary T. Schwartz Distinguished Professor of Law at UCLA Law School.
The following organizations also joined as Amici:
- First Amendment Coalition protects and promotes a free press, freedom of expression, and the public’s right to information.
- Freedom of the Press Foundation is dedicated to the protection of public interest journalism, monitors press freedom violations in the United States, and advocates the public’s right to information.
- The National Freedom of Information Coalition is dedicated to protecting citizen rights to open government by ensuring state and local governments and public institutions have laws, policies, and procedures to facilitate press and public access to information and proceedings.
- The Reporters Committee for Freedom of the Press provides pro bono legal representation, amicus curiae support, and other legal resources to protect First Amendment freedoms and the newsgathering rights of journalists.
- Society of Professional Journalists is dedicated to encouraging the free practice of journalism and cultivating high standards of ethical newsgathering and reporting.
- The Tennessee Coalition for Open Government is a Tennessee-based advocacy group that seeks to preserve, protect, and improve citizen access to public information and open government in Tennessee through an alliance of citizens, journalists, and civic groups.
About the Stanton Foundation First Amendment Clinic
Students in the Stanton Foundation First Amendment Clinic, under faculty supervision, have responsibility for representing clients in civil litigation cases implicating First Amendment rights of persons and organizations otherwise unable to afford counsel for those matters. Casework focuses on free speech, freedom of the press, and freedom of assembly.
About the Intellectual Property & the Arts Clinic
The Intellectual Property & the Arts Clinic allows students to practice and represent clients in the areas of intellectual property and the arts. Students, under faculty supervision, represent and counsel individuals, businesses, organizations, groups and associations in matters in various intellectual property fields, including, but not limited to, copyright, trademark, publicity rights, and trade secrets.
